Bombay High Court
Official Liquidator Of Abg Cements ... vs Beumer Technology India Pvt Ltd on 29 March, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
4 olr 87-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
OFFICIAL LIQUIDATOR'S REPORT NO. 87 OF 2021
WITH
OFFICIAL LIQUIDATOR'S REPORT NO. 67 OF 2022
WITH
OFFICIAL LIQUIDATOR'S REPORT NO. 158 OF 2022
IN
COMPANY PETITION NO. 863 OF 2015
In the matter of Companies Act, I of 1956
and
In the matter of Vadraj Cement Ltd. (in Liqn.)
Beumer Technology India Pvt. Ltd. ..Petitioners
Mr. Shanay Shah for the O.L.
Mr.Chintan Shah i/b. Sandesh Patil for the Respondent No.2.
Mr. Shatrughan Chauhan, Dy.O.L. is present.
CORAM : B. P. COLABAWALLA, J
DATE : 29 MARCH 2023
P.C.
1. By an order dated 24th November 2021 in Official Liquidator Report No. 70 of 2021 in Company Petition No. 863 of 2015, this Court had allowed the Official Liquidator to proceed for the sale of Page 1 of 8 MARCH 29, 2023 Laxmi ::: Uploaded on - 30/03/2023 ::: Downloaded on - 31/03/2023 01:39:12 ::: 4 olr 87-21.doc the assets of the Company Vadraj Cement Limited (in liquidation) and also appointed Ernst & Young LLP as the external advisory agency to assist the Official Liquidator to carry out the sale of the movable and immovable assets of the Company (in liquidation) and prepare the necessary documentation.
2. The Official Liquidator filed an Official Liquidator Report No. 87 of 2021 seeking direction of this Court to declare the Provisional Attachment order No. 01 of 2020 dated 21 st January, 2020 issued by Directorate of Enforcement, Mumbai and order of Adjudicating Authority under Prevention of Money Laundering Act, 2002 dated 5 th August, 2021 confirming the aforesaid Provisional Attachment order No. 01 of 2020, as non-est, void, and not binding on the Official Liquidator.
3. The Directorate of Enforcement, Mumbai has filed an Affidavit in reply in the aforesaid Official Liquidator Report No. 87 of 2021. This Court, in its order dated 6 th April, 2022 recorded the averments of Directorate of Enforcement, Mumbai in paragraph No.2 which is reproduced hereunder:-
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4 olr 87-21.doc ".......Further, it is humbly submitted that if the value of Provisional Attachment Order No. 01/2020 dated 21.01.2020 is secured than Directorate of Enforcement, Mumbai does not have any objection to sell the property by Official Liquidator and it is further prayed that the said amount of Rs. 952 crores may be kept aside in favour of Directorate of Enforcement in interest bearing FDR so that the appreciation of property price shall be covered".
In view of the aforesaid stand of Directorate of Enforcement, Mumbai this Court directed the Official Liquidator to file a further report seeking permission for sale.
4. The Official Liquidator also filed an Official Liquidator Report No. 67 of 2022 seeking the following directions:
a. In view of para (18) and (19), whether this Hon'ble Court may be pleased to permit Official Liquidator to convey to panel valuer, V.S. Jadon & Co. Valuers LLP to consider the letters received by the Official Liquidator from the Mamlatdar of Abdasa, Kutch dated 06.04.2022 and Mamlatdar of Chorasi, Surat dated 24.05.2022 and submit addendum to Valuation Report to the Official Liquidator in sealed cover and Official Liquidator may be permitted to place the same before this Hon'ble Court for perusal along with the further report for seeking permission to sell the assets of the Company (In Liquidation).Page 3 of 8
MARCH 29, 2023 Laxmi ::: Uploaded on - 30/03/2023 ::: Downloaded on - 31/03/2023 01:39:12 ::: 4 olr 87-21.doc b. In view of the para (25), (28) and (30), whether this Hon'ble Court may be pleased to direct the Ld. Collector of Kutch to convey their 'no objection' in response to Official Liquidator's recent letter dated 10.06.2022 to proceed for the proposed sale where transfer of leasehold rights in land, of the Company (In Liquidation) are being sold and required to be transferred in the name of successful buyer as and when this Hon'ble Court confirms the sale;
c. In view of the para (25), (28), (30) and (34) whether this Hon'ble Court may be pleased to direct the Ld. Collector of Surat to convey their 'no objection' in response to Official Liquidator's recent letter dated 10.06.2022 to proceed for the proposed sale where transfer of leasehold rights in land, of the Company (In Liquidation) are being sold and required to be transferred in the name of successful buyer as and when this Hon'ble Court confirms the sale;
d. In view of the para (25), (28), (30) and (34), whether this Hon'ble Court may be pleased to direct the Ld. Collector of Kutch to convey their 'no objection' in response to Official Liquidator's recent letter dated 10.06.2022 to proceed for the proposed sale where transfer of leasehold mining rights of the Company (In Liquidation) are being sold and required to be transferred in the name of the successful buyer as and when this Hon'ble Court confirms the sale;
e. In view of para (26) and in alternative to prayer clause (d) above, if the Collector of Kutch is not the competent authority, whether this Hon'ble Court may be pleased to direct the Additional Chief Secretary, Industries and Mines Department, Government of Gujarat to convey their 'no objection' in response to Official Liquidator's letter dated 08.04.2022 to proceed Page 4 of 8 MARCH 29, 2023 Laxmi ::: Uploaded on - 30/03/2023 ::: Downloaded on - 31/03/2023 01:39:12 ::: 4 olr 87-21.doc for the proposed sale where transfer of leasehold mining rights of the Company (In Liquidation) are being sold and required to be transferred in the name of successful buyer as and when this Hon'ble Court confirms the sale;
This Court allowed prayer clause (a) above vide order dated 14th September, 2022 and also recorded that prayer clauses (d) and (e) have also been worked out. Further this Court recorded in the order dated 1st February, 2023 that learned Senior Counsel for the Official Liquidator made a submission that No Objection Certificate was received from the Government of Gujarat. Now since the No Objection Certificate is received from Government of Gujarat, prayer clauses (b) and (c) have also been worked out. Therefore, all the prayers of the Official Liquidator Report No. 67 of 2022 have been worked out and nothing survives in this Official Liquidator Report No. 67 of 2022.
5. The official Liquidator further filed an Official Liquidator Report No.158 of 2022 seeking the following directions:-
a. In view of paragraph (16),(19),(24) and (27) of this report, whether this Hon'ble Court be pleased to declare the Provisional Attachment Order No. 08/2022 dated 21.09.2022 under subsection (1) of Page 5 of 8 MARCH 29, 2023 Laxmi ::: Uploaded on - 30/03/2023 ::: Downloaded on - 31/03/2023 01:39:12 ::: 4 olr 87-21.doc section 5 of the Prevention of Money Laundering Act, 2002 issued by the Directorate of Enforcement, Ahmedabad in respect to the properties of the Company (In Liquidation) as non-est, void, and not binding on the Official Liquidator;
b. In view of paragraph (17) whether this Hon'ble Court be pleased to stay the proceedings before Hon'ble Adjudicating Authority, New Delhi under Prevention of Money Laundering Act, 2002 till disposal of this present report;
c. That pending and final disposal of this present report, this Hon'ble Court may be pleased to stay the effect, operation and implementation of the Provisional Attachment Order No.08/2022 dated 21.09.2022 issued by the Directorate of Enforcement, Ahmedabad in respect to the properties of the Company (In Liquidation) under sub-section (1) of section 5 of the Prevention of Money Laundering Act, 2002;"
6. Today the Directorate of Enforcement, Ahmedabad, tenders an affidavit in reply which is taken on record. In the said affidavit, it is averred, inter-alia, as under:-
"Further, it is humbly submitted that if the value of Provisional Attachment Order No. 08/2022 dated 21.09.2022 is secured then Directorate of Enforcement, Ahmedabad does not have any objection to sell the property by official Liquidator and it is further prayed that the said amount of Page 6 of 8 MARCH 29, 2023 Laxmi ::: Uploaded on - 30/03/2023 ::: Downloaded on - 31/03/2023 01:39:12 ::: 4 olr 87-21.doc Rs.1395.79 Crore (1315.07+80.72) may be kept aside in favour of Directorate of Enforcement, Ahmedabad in interest bearing FDR so that the appreciation of property price shall be covered. It is further prayed that, as investigation is still ongoing and if it reveals that additional amount has also been transferred to Vadraj Cement Ltd from ABG Shipyard Ltd, then there is likelihood of further attachment of properties of Vadraj Cement Ltd, and therefore any excess recovery from sale proceeds, if any may also be held by liquidator until completion of present investigation in the case of ABG Shipyard Ltd."
7 In view of the aforesaid stand of Directorate of Enforcement, Ahmedabad, Mr. Shanay Shah, Ld. Counsel for the Official Liquidator submits that the Official Liquidator may be permitted to file a further report seeking direction for sale of subject property and thereafter the distribution of sale proceeds may be decided by this Court subsequently.
8. The Ld. Counsel for Directorate of Enforcement, Ahmedabad does not have any objection to the said proposition.
9. The official Liquidator is directed to file a further report seeking permission for sale of subject property within 3 weeks.
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10. Ld. Counsel for Directorate of Enforcement, Ahmedabad, further states that in view of above position, the Competent Authority will not take any further steps pursuant to order dated 05 th August 2021 and 14th March 2023 in Original Complaint No. 1268 of 2020 and Original Complaint No. 1824 of 2022, respectively
12. Official Liquidator's Report No.67 of 2022 is disposed of.
13. List OLR No. 87/2021 and OLR No. 158/22 on 12/06/2023.
14. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[ B. P. COLABAWALLA, J ].
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